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Eversheds Sutherland's corporate claims bulletin - May 2018

  • United Kingdom
  • Personal injury claims litigation - Personal Injury Bulletin

19-06-2018

LIABILITY

Philip James Clay v TUI UK LTD (2018) EWCA Civ 1177

The claimant appealed against the dismissal of his claim for damages for personal injury brought against the respondent travel company.

The claimant together with his wife, his two children and his parents went on a package holiday to the hotel provided by the defendant. The claimant and his family were staying in one room and the parents were staying next door. Both rooms were two stories up and each had its own balcony. Whilst having drinks in the evening on the parents’ balcony, the balcony sliding door was closed to prevent insects entering the room. The balcony door inadvertently locked trapping the claimant, his wife and parents on the balcony.

After trying without success to attract attention for about 30 minutes, the claimant endeavoured to step across from his parents’ balcony to his own room’s balcony. In doing so, he stood on the ornamental ledge underneath the balcony. The ledge gave way and the claimant fell to the terrace below fracturing his skull.

The claim was brought on the basis that the defendant was liable for breaches of local standards by the hotel pursuant to the Package Travel Regulations 1992.

The trial judge found that whilst there was no breach of local standards in relation to the construction of the balcony or any failure to warn about the balcony, there was a finding that the door locking mechanism was defective in breach of local standards and that the defendant was accordingly in breach of duty.

The central issue in the case was the matter of causation.

The appeal was on the basis that the Judge had misdirected himself as the appropriate test of remoteness, and that the judge’s conclusion that the defect in the locking mechanism was not causative of the accident was wrong.

Determining whether there has been a novus actus interveniens (intervening act which breaks the chain of causation) requires a judgment to be made as to whether, on the particular facts, the sole effective cause of the loss, damage or injury suffered is the novus actus interveniens rather than the prior wrongdoing, and that the wrongdoing, whilst it might still be a “but for” cause and therefore a cause in fact, had been eclipsed so that it is not an effective or contributory cause in law.

The case of Spencer v Wincanton was cited as confirming that where the line is to be drawn is not capable of precise definition. Various considerations may, however, commonly be relevant. In a case involving intervening conduct, these may include:

1) The extent to which the conduct was reasonably foreseeable-in general, the more foreseeable it is, the less likely it is to be a novus actus interveniens.

2) The degree of unreasonableness of the conduct-in general, the more unreasonable the conduct, the more likely it is to be a novus actus interveniens and a number of cases have stressed the need for a high degree of unreasonableness.

3) The extent to which it was voluntary and independent conduct-in general, the more deliberate the act, the more informed it is and the greater the free choice involved, the more likely it is to be a novus actus interveniens.

The Court of Appeal held that the trial judge had been justified in coming to the conclusion that he did based on his findings of fact:

1) The claimant’s conduct, was not reasonably foreseeable. In this connection the judge accepted the defendant’s argument that attempting to walk on the ledges was “such a foolhardy act in the eyes of any reasonable hotelier that it was beyond sensible contemplation, or beyond contemplation as a risk requiring warning”. Further the trial judge stated that he found it difficult to accept that those responsible at a hotel in the Canary Islands should have foreseen a guest would climb onto the outer ledge.

2) The conduct was unreasonable to a high degree given the claimant and his family were faced with inconvenience rather than any danger emergency or threat and the obvious risk of life threatening injury involved in the course of action which the claimant chose to take.

3) The conduct of was voluntary. It was both considered and deliberate. There was no necessity for the claimant to take any risk, but nevertheless chose to expose himself to real danger and to an obvious risk of death or serious personal injury.

Saira Faisal (1) Ayman Faisal (2) Claimants v Younis (t/a Safa Superstore) (1 and Appellant) & Active Brands Concept LTD (2 and Respondent) (2018) EWHC 1111 (QB)

An appeal against a decision apportioning liability in contribution proceedings between two defendants. The appeal was brought by the first defendant (owner of convenience store), whose position throughout has been that liability should rest solely with the second defendant (the manufacturer of the product).

The claim arose out of an accident at the first defendant’s convenience store. The second claimantt went into the store with her son (first claimant) who was then aged two-and-a-half, in his pushchair. The boy was able to get hold of a bottle of caustic soda, remove the cap of the bottle and put some of the contents into his mouth. This caused him serious injury. In assisting him, his mother sustained chemical burns.

It was not disputed that the cap on the bottle of caustic soda was defective. The second defendant admitted liability to the claimants in full. The defendants issued contribution proceedings against each other.

At first instance hearing, the Recorder concluded that the first defendant was jointly liable with the second defendant and apportioned responsibility on the basis that the second defendant should bear two-thirds and the first defendant one-third. In addition the Recorder ordered that the first defendant should pay the second defendant’s costs of the contribution proceedings on the basis that it was the second defendant who was the true “winner”.

Caustic soda is a product to which the Poisons Act 1972 applies and requires a licence to sell the product. The first defendant did not have such a licence. The Recorder also made important factual findings about the first defendant’s store. The store had narrow aisles and heavily stocked shelves. The first defendant did not want prams in his shop, partly because they tended to knock goods off the shelf. The first defendant had also stated that if he knew the product was dangerous, he would have checked the lids but not moved from the bottom shelf.

The Recorder in dealing with the breach of duty, considered the relevant authorities and gave appropriate weight to the following factors:

a) The likelihood of injury

b) The consequences if the foreseen event occurs.

c) The social value of the activity giving rise to the risk.

d) The cost of preventative measures.

In applying those principles the Recorder had come to the following conclusion.

“I find that the likelihood of injury to a young child is small, since caustic soda is presented in child resistant packaging; however, there is a non-negligible risk that the child will be exposed to the dangerous substance owing to a fault in the packaging or owing to the fact that the packaging is child resistant and not child proof (so there is always a risk it might fail). The consequences, should the child come into contact with caustic soda, are catastrophic; as the present case demonstrates. There is clearly social utility in having caustic soda available to clean and unblock drains, but this factor has little significance in the context of what duty is owed by a shopkeeper to small children in his shop. The cost of preventative measures, specifically moving the product to a higher shelf, is almost zero. In my judgment, the first defendant owed the claimants a duty of care, and in his failure to take reasonable precautions, he was in breach of duty”.

The High Court on appeal decided that the Recorder had reached a decision that he was entitled to reach, applying the correct legal principles to the evidence placed before him.

QUANTUM

Kelly Dyke v Alistair Jenkins (2017) (Lawtel)

The claimant was injured in 2014 in a road traffic accident, in which she was a rear seat passenger in the vehicle.

The claimant suffered whiplash, deceleration injuries, fractures to the neck, back and ribs, ruptured bowel, severe bruising, trauma to the shin and facial bruising. The claimant experienced pain and psychological damage including post-traumatic stress disorder. The claimant’s mobility was restricted in walking distance without pain and she was restricted in her ability to care of her family and carry out domestic chores. She also underwent an operation to remove a portion of the small intestine and a hysterectomy.

The prognosis for her psychological symptoms was good, but it was expected that the claimant’s mobility problems would continue on a long term basis.

Out of court settlement: £484,209, with the sum of £55,000 being allocated for pain, suffering and loss of amenity.

Gary Banks v Dairy Crest Group PLC (2017) (Lawtel)

This was an employer’s liability claim, where the claimant slipped on a gap on a pallet injuring his knee.

The claimant sustained an acute torsional injury to the knee, an unstable medial meniscus tear and an acute large bucket handle tear of the medial meniscus.

On 23 September 2014 the claimant saw an orthopaedic surgeon. He had lost 20 degrees of full extension in the knee and suffered medial joint line pain. There was a positive result on a meniscal test.

After the accident the claimant used crutches for approximately four months. His mobility was very limited for approximately five months. He required help from his wife with carrying out personal care tasks and chores. Before the accident he had played football daily with his son but after the accident he was unable to do so.

The prognosis was that there was a predisposition to the claimant suffering a future degenerative disease, although two thirds of the predisposition was attributable to a pre-existing minor degenerative change, only one third was attributable to the index accident. There was also a risk of approximately 40 per cent that he would develop mild to moderate medial compartment symptomatic degenerative disease of the right knee at 15 years after the accident. As a direct result of the index accident there was a risk of approximately 20 per cent that he would develop advanced symptomatic post-traumatic osteoarthritis of the knee which might result in the need for a total knee replacement.

In an out of court settlement the claimant was awarded the sum of £25,000 of which the award for pain suffering and loss of amenity fell within the bracket £13,000 to £15,000.

COSTS

Atlas Havacilik Anonim Sirketi (Appellant/Second Defendant) v Ozlem Kupeli & Ors (First Respondents/Claimants) & Kibris Turk Hava Yollari Sirketi (T/A Cyprus Turkish Airlines) (Second Respondent/First Defendant) (2018) EWCA Civ 1264

Following a trial of preliminary issues and lead cases in claims for breach of contract and denied boarding, the defendant airline appealed against an order that it had to pay 33% of the claimants’ costs. The claimants’ costs were in the region of £800,000. The sum of £225,00 had been ordered as a payment on account of costs.

There were 838 individual claimants, all represented by one firm of solicitors on a conditional fee basis with a success fee of 100%. There were no group litigation orders or after the event insurance. The claims were made on the dual basis of Regulation 261/2004 and breach of contract. Category 1 passengers were those who had received tickets from the defendant which were subsequently cancelled. Category 2 and 3 were those who had been promised tickets or replacement flights by the airline’s travel agent. At trial, it was held that the Regulation did not apply and the claims by Category 2 and 3 passengers failed because there was no confirmed booking with the airline. At trial, the category 1 passengers were held to have a contract with the airline. The airline was held to have cancelled some of the confirmed reservations in breach of contract and ordered to pay compensation to 14 passengers (in the region of £500 per claimant). A further 32 claims were transferred to the County Court to be assessed on their merits.

In determining who was the winner on the preliminary issue, the Judge took as the starting point the party who receives money as a result of the substantive judgment, and in this case it was the passengers. The judge then considered whether those costs should be discounted or reduced taking into account other factors such as the conduct of the parties and the heads of claim which were successful. Specific note was made of the defendants to provide adequate disclosure and its refusal to negotiate.

In considering the matter, the Court of Appeal considered that the trial judge was wrong to equate “who receives a cheque” with the successful party for the purposes of CPR rule 44.2(2) in the context of this complex group action. Considering all the matters, whilst the defendant airline may have had slight success over and above the success obtained by the claimants at trial, this was offset by the conduct issues as found by the judge. In the circumstances, the appropriate order to have been made was no order as to costs.

PROCEDURE

Kimathi & ORS v Foreign & Commonwealth Office (2018) EWHC 1305 (QB)

The claims related to alleged abuses arising during the course of the Kenyan Emergency of the 1950s.

The court was required to rule on the preliminary issue as to whether the claims were statute barred. If the claims were classed as personal injury claims then the court has a discretionary power under S. 33 of the Limitation Act 1980 to exclude the normal 3 year period. The claims were already outside the 6 year limitation period for trespass to the person.

The claimants alleged that during the 1950’s they had been detained in villages or detention camps and that the threat of force by British colonial authorities compelled them to remain there and carry out forced labour. Some of the claimants alleged that they were beaten, lived in terrible conditions and lived in fear and distress of unlawful violence by the authorities. Other claimants alleged that although they were not beaten, they were forced into detention and lived in fear of being punished and shot.

A late application by the claimants for permission to rely upon evidence that some of them suffered a recognised psychiatric condition as a result of the alleged treatment had been refused.

The claimants submitted that (1) fear amounted to “personal injury” so that the court had a discretionary power to exclude the 3 year limitation period, and (2) a claim that the alleged treatment of the claimants was arguably inhuman and degrading sufficient to engage their human rights, which should tip the balance in deciding whether fear amounts to a personal injury.

The court decided that whether fear alone amounted to personal injury had already been clearly decided in the case of Hicks v Chief Constable of South Yorkshire, which outlined that fear by itself was a normal human emotion for which no damages could be awarded. The court confirmed that the human rights argument was irrelevant, in that there was no lack of a domestic remedy. The application only deals with which category the right of trespass falls and the applicable limitation period. It was not a question as to whether there is a right of action for trespass to the person.

Mr Mirajuddin Molodi v Cambridge Vibration Maintenance Service (1) & Aviva Insurance (2) (2018) EWHC 1288 (QB)

The case involved a road traffic accident. The defence filed in the matter conceding liability for the accident but denied any injury loss or damage as the contact between the vehicles was so minimal. There were no specific allegations of fraud made in the defence. The claim was allocated to the fast track rather than the matter having special directions applicable to “low velocity impact” cases.

There were a number of issues identified with the claimant’s evidence:

  • The claim for £1,300 vehicle damage when in fact the claimant under cross-examination stated that his vehicle had been repaired by a friend for £400.
  • The contradiction between the Claim Notification Form (CNF) and the claimant’s evidence in relation to whether the claimant was the only occupant or whether he had a male passenger;
  • The CNF stating that the claimant had no rehabilitation needs when the claimant then made a claim for 12 sessions of physiotherapy which had been arranged by his solicitors.
  • The inconsistency in the claimant’s position in whether he had time off work as a result of the accident.
  • The fact that the claimant told his medical expert that he had only had one previous accident, which the claimant again confirmed in his witness statement, when in fact he had been involved in at least four previous accidents and probably more, possibly as many as seven previous accidents.

The Trial Judge whilst noting a number of inconsistencies with the claimant’s evidence did however find that on the balance of probabilities that the claimant did suffer some injury as a result of the collision.

The High Court emphasized the importance of recognising the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. The problem of fraudulent and exaggerated whiplash claims is well recognised and should cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. It was recognised by the High Court judge that claimants will sometimes make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainty, and in any case where the claimant can be demonstrated to have been untruthful or where a claimant’s account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.

The High Court judge stated that the medical evidence is at the heart of claims for whiplash injuries. Not only had the claimant lied to the medical expert about the number of previous accidents, but he had also maintained that lie in his witness statement, endorsed with a statement of truth. The history in relation to previous accidents goes to the fundamental question of causation, and further, knowledge that a claimant had been involved in many previous accidents might cause a medical expert to look more closely at whether the reported injuries are consistent with the circumstances of the accident.

Once a claimant could be shown to have been dishonest in respect of a fundamental matter and then to have maintained that dishonesty through his witness statement and into his evidence before the Court, it is difficult to see how the trial judge could have accepted any part of the claimant’s evidence or the medical report itself, and, without these, there was nothing left.

The defendant had proved, on the balance of probabilities, that the claimant had been fundamentally dishonest. The trial judge should have dismissed the claim, either pursuant to s.57(2) of the Act, or because the claimant had failed to prove his case. This case was one of those rare examples where the weight of the other evidence, and in particular the medical evidence, were sufficient for the High Court to justify overturning the trial judge’s finding that he could rely on the claimant’s evidence as to the fact that he had been injured and as to the duration of some of those injuries.

OTHER NEWS

Website aims to help cyclists pursue personal injury claims without lawyers

A website offering free legal advice to cyclists injured in road traffic accidents has been launched with the aim of removing the need for solicitors and saving victims “an average of £800. Litem uses an algorithm to work out if there is a good case, prepares a letter to send to the Defendant and calculates what it believes the case is worth. Is this the future for RTA litigation?

ABI lashes out at MPs over small claims report as claimant lawyers urge government to act on it

The Association of British Insurers (ABI) has strongly criticised the recommendations made by the justice select committee report to raise the small claims limit to £1,500 rather than higher levels proposed by the Government. James Dalton, the ABI’s director of general insurance policy, said that if the recommendations were accepted they would play no part in reducing the number and cost of whiplash-style claims, and motor insurance premiums would continue to rise.

For more information contact

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